IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
July 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GABRIEL NATHANIEL DOWD, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM029331)
The opinion of the court was delivered by: Nicholson, Acting P. J.
P. v. Dowd
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gabriel Nathaniel Dowd was arrested as a result of his involvement in an altercation with his ex-girlfriend, Katherine Thompson, as she was sitting in her car with her seven-year-old son, D.H. Defendant blocked Thompson's car with his truck, got out and grabbed her by the neck and threatened to kill her, then got back into his truck and twice rammed it into the back of Thompson's car.
Represented by counsel, defendant pled guilty in case No. CM029331 to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a))*fn1 and no contest to assault with a deadly weapon on Thompson and D.H. (§ 245, subd. (a)(1)) in exchange for dismissal with a Harvey*fn2 waiver of a remaining charge of criminal threats (§ 422).
The court imposed but suspended execution of a five-year state prison sentence and granted defendant three years of formal probation conditioned upon a waiver of all custody credits pursuant to People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson) and subject to specified terms and conditions, including the condition that defendant surrender his California driver's license for life pursuant to Vehicle Code section 13351.5. The court imposed specified fees and fines.
On November 19, 2009, the probation department filed a petition in case No. CM029331 alleging defendant violated probation when, on November 19, 2009, he was observed by his probation officer driving his vehicle after having his driver's license revoked.
The probation department filed an amended petition in case No. CM029331 incorporating the November 19, 2009, allegation, and further alleging defendant violated probation when, on June 3, 2010, he was arrested in San Diego County and charged with evading an officer*fn3 (Veh. Code, § 2800.2, subd. (a)), driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), disobeying a lawful court order (§ 166, subd. (a)(4)), and resisting arrest (§ 148, subd. (a)(1)).
Defendant filed a petition for writ of habeas corpus seeking an order reinstating his driver's license and vacating his prior waiver of presentence custody credits or, alternatively, to withdraw his plea. The court denied the petition.
Defendant admitted the June 3, 2010, probation violations in exchange for dismissal of the November 19, 2009, allegations with a Harvey waiver. The court denied probation, executed the previously imposed five-year sentence in case No. CM029331, and imposed a consecutive term of eight months (one-third the middle term) in case No. SCD227764, for an aggregate state prison sentence of five years eight months. The court imposed specified fees and fines in both cases, and awarded defendant 60 days of actual credit, plus 60 days of conduct credit, plus 102 days of state time served, for a total of 222 days of presentence custody credit in case No. SCD227764. No presentence custody credits were awarded in case No. CM029331 based upon defendant's Johnson waiver. Defendant filed a timely notice of appeal. He did not request a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition that is more favorable to defendant.
The judgment is affirmed.
We concur: BUTZ , J. MURRAY , J.